Legal Considerations for Recreational Ponds

Charles Lutz  |  3/30/2006 11:39:41 PM

Permitting

Pond-related permitting begins with the site selection and construction phases. Non-wetland construction in an upland area outside the coastal zone, in an area higher than 5 feet above sea level or in a fastland within the coastal zone, requires no permit from the U.S. Army Corps of Engineers, Coastal Management Division or the Environmental Protection Agency, but local ordinances should be checked for site selection/construction requirements. If the project causes discharges into coastal waters or changes existing water flow into coastal waters, a permit may be needed.

If water bottoms or wetlands are affected by the construction, contact the U.S. Army Corps of Engineers or the Natural Resources Conservation Service. Under state law, within the coastal zone -- below 5 feet and not in a fastland -- dredging, filling or construction and operation of water control structures, including levees, all require a state or local coastal use permit.

Public Lands and Waters

Anywhere in the state, any activity encroaching on state lands or state-owned water bottoms must be permitted by the Division of Administrations’ State Lands Office. As for federal law, any obstruction of navigable U.S. waters or discharges of dredged or fill materials into such waters require a permit from the Army Corps of Engineers.

Note that public waters may be diverted for private use -- unless regulated by laws related to coastal zone management -- so long as such waters are returned to their natural channel after use. Also, federal law may require a permit for any diversion of water from a navigable river. Any well that produces more than 50,000 gallons of water/day must be registered with the Department of Public Works. Wells drilled after July 26, 1972, that are free-flowing and produce more than 25,000 gallons/day must have control devices.

Other Regulations

The use of chemicals is regulated by Food and Drug Administration and the EPA. Stocking also requires regulatory compliance. Many exotic species may not be brought into the state without permits from the Louisiana Department of Wildlife and Fisheries, and some – such as the piranha – are absolutely prohibited. Many fish predators are protected by federal and state endangered-species laws. Before taking action against birds or other predators, pond owners should consult the appropriate laws through the Department of Wildlife and Fisheries.

Liability

Along with regulations, legal liability for accidents occurring on a pond owner’s property must be considered. Most Louisiana legal cases involving pond-related accidents deal with children wandering onto property and drowning in a small water hole, such as a borrow pit. Plaintiffs in these cases usually base their claims on the “attractive nuisance doctrine,” which has two requirements to make the defendant liable. First, the nuisance must have some artificial or otherwise special feature that makes it especially dangerous to children, or the danger must be a hidden one. Second, the child must be so young as not to be responsible.

Many plaintiffs have lost cases because there was nothing especially “attractive” about the defendants’ ponds or borrow pits and/or the children involved were teen-agers capable of understanding the danger. Defendants were also helped because they had fences, and their ponds were in fairly remote areas, away from areas children would usually be in.

Also be aware of the legal concept of “strict liability,” which means exactly what it sounds like. Some activities are judged to be so dangerous that they will result in legal liability if anyone is harmed because of them. If a court establishes that the owner of a pond has some duty to keep it safe to the public and finds that the plaintiff in a particular case was hurt in that pond because it was not safe, then the owner will be liable.

Fortunately for pond owners, such duty has rarely been established for owners of ponds and pits, usually because they are not in areas frequented by the public. Trespass laws may help, because they state that under the law the public has no business on pond owners’ property. However, if for some reason a court in a particular case finds a duty under strict liability analysis, the defendant will be found liable.

Another possible source of liability for pond owners is runoff. Any obstruction of, or change of, natural drainage that affects neighboring property is a source of possible liability. If any trash or chemicals get into public waters because of the runoff, then the pond owner could also be subject to direct fines by state agencies. For this reason, all drainage should be planned and controlled.
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